Martinez v. Ambriz , 84 F. App'x 446 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 5, 2004
Charles R. Fulbruge III
Clerk
No. 03-50647
Summary Calendar
MARCELINO MARTINEZ,
Plaintiff-Appellant,
versus
FNU AMBRIZ; FNU MORALES; FNU CARRILLO; FNU
FENNER; FNU HINKLE; FNU LUEVA; FNU GONZALEZ;
JOHN DOE, Parole Officer; FNU GARRISON; FNU ORTIZ;
FNU GARCIA; FNU ANDERSON; JOHN DOE, S. C. C.; JOHN
DOE, B. O. C.,
Defendants-Appellees.
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Appeals from the United States District Court
for the Western District of Texas
USDC No. SA-03-CV-319
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Marcelino Martinez, Texas prisoner #526628, appeals the
district court’s judgment, dismissing his civil rights claims,
seeking compensatory and injunctive relief, against personnel at
the Connally Unit of the TDCJ-ID for failure to state a claim
upon which relief could be granted and transferring his remaining
claims against personnel at the Smith Unit of the TDCJ-ID to the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 03-50647
-2-
Northern District of Texas. See 42 U.S.C. § 1983; 28 U.S.C.
§ 1915(e)(2)(B)(ii). We lack jurisdiction to review the district
court’s order transferring venue of the claims against the Smith
Unit personnel. See Enplanar, Inc. v. Marsh, 11 F.3d 1284, 1298
(5th Cir. 1994).
We review a dismissal for failure to state a claim under 28
U.S.C. § 1915(e)(2)(b)(ii) under the de novo standard of review.
Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999). We
conclude that the district court did not err in dismissing
Martinez’s claim that Grievance Investigator Sanches failed to
protect him from other inmates by refusing to remove him from
administrative segregation. See Neals v. Norwood, 59 F.3d 530,
533 (5th Cir. 1995). The district court’s dismissal of
Martinez’s denial of access to courts and retaliation claims
against Ms. Artiz, Major Carillo, Captain Hinkle, and Mr. Fenner
and his claim of supervisory liability against Warden Morales
also was not error. See Lewis v. Casey, 518 U.S. 343, 351
(1996); Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997);
Thompkins v. Belt, 828 F.2d 298, 303-04 (5th Cir. 1987). We do
not consider the merits of the claims against the Smith Unit
personnel which have been transferred to the Northern District of
Texas or the claims that implicate the liability of individuals
not named as defendants in this lawsuit.
The district court did not abuse its discretion in denying
Martinez’s motion for appointment of counsel, and it did not err
No. 03-50647
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in not holding an evidentiary hearing. See Cupit v. Jones, 835
F.2d 82, 86 (5th Cir. 1987); Wesson v. Oglesby, 910 F.2d 278, 281
(5th Cir. 1990).
Because Martinez’s appeal is without arguable merit, it is
DISMISSED as frivolous. See Howard v. King, 707 F.2d 215, 219-20
(5th Cir. 1983); 5TH CIR. R. 42.2. This dismissal of this appeal
as frivolous counts as a “strike” under 28 U.S.C. § 1915(g), as
does the district court’s dismissal of Martinez’s complaint for
failure to state a claim. See Adepegba v. Hammons, 103 F.3d 383,
385-88 (5th Cir. 1996). Martinez is warned that if he
accumulates three strikes, he will not be able to proceed in
forma pauperis (IFP) in any civil action or appeal filed while he
is incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g). Martinez’s motions for an injunction pending appeal
and for appointment of counsel are DENIED. Given that the
district court has granted Martinez permission to proceed IFP on
appeal, his IFP motion before this court is also DENIED.
APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED; ALL MOTIONS
DENIED.